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Gassman v. Frischholz

April 30, 2007

DEBRA GASSMAN, PLAINTIFF,
v.
EDWARD FRISCHHOLZ, AND SHORELINE TOWERS CONDOMINIUM ASSOCIATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Debra Gassman ("Plaintiff" or "Gassman") brought this suit against her condominium association, Shoreline Towers ("the Association"), and the President of its Board, Edward Frischholz (collectively, "Defendants"). Plaintiff alleged that Defendants discriminated against her by enforcing a by-law that prevented her from placing a Mezuzah (a religious parchment encased in a small tube) on the outside of her doorway. Plaintiff also alleged that Defendants fined her for alleged rules violations in retaliation for complaining of this discrimination. Plaintiff's claims of religious discrimination were dismissed on summary judgment. Plaintiff claims that Defendants breached their fiduciary duty in enforcing the by-law and retaliated against her for complaining of the discrimination went to trial. On November 2, 2006, the jury returned a verdict in favor of Defendants on both claims.

Plaintiff now moves this Court pursuant to Federal Rule of Civil Procedure 59 to grant her a new trial. This Court will grant a new trial if the jury's verdict was "against the clear weight of the evidence or the trial was unfair to the moving party." David v. Caterpillar, Inc., 324 F.3d 851, 863 (7th Cir. 2003); see Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993) ("[C]ivil litigants are entitled to a fair trial, not a perfect one"). Plaintiff contends that defense counsel's statements during closing arguments and cross-examination rendered the trial unfair. The challenged statements dealt with: (i) who would ultimately pay for any judgment awarded against Defendants; and (ii) Plaintiff's decision to be represented by counsel at her rules violation hearing. This Court, having heard the remarks and considered them in the context of the trial as a whole and the Court's instructions to the jury, finds that defense counsel's statements did not deny Plaintiff a fair trial.

I. Statements Regarding Defendants' Potential Liability for a Judgment

Defendants filed a Motion in Limine to exclude any evidence that they had insurance covering Plaintiff's claims against them. Defendants argued that they would be unfairly prejudiced if the jury knew that a third-party insurance company, and not Defendants, would be responsible for some or all of a money judgment. Generally, evidence that a person was or was not insured against liability is not admissible. See Fed. R. Evid. 411. Accordingly, the Court granted Defendants' motion.

During his closing argument, Plaintiff's counsel, Steven Blonder ("Blonder"), characterized the condominium association as large and not "some little mom-and-pop operation." In turn, Defendants' counsel, David Hartwell ("Hartwell"), argued in closing:

Is this enough? It is enough. Enough is enough. Mr. Blonder gets up here and arrogantly says, I need you to award damages, as if he's even proved his case. And then he says that their behavior is so outlandish you've got to award punitive damages. But this is what I like the best. He says, You know what? This just isn't some little association. This is a big association. They've got a lot of money. Just tag them. Well, let's think about that. Who pays for the association? Every one of its members.

Now, you saw Ms. Bloch, she's a unit owner. Ms. Treptow, she's a unit owner. Dr. Frischholz, he's a unit owner. Ms. Weinstein, she's not; she's just a renter. These are the people involved here. And now all of a sudden he wants you to get the entire association, all of its members involved and punish all of them.

Before making his rebuttal closing argument, Blonder asked the Court if he could mention that the Association carried insurance because of Hartwell's statements regarding the potential liability of individual unit owners. The Court first noted that Plaintiff's counsel had not objected to the statements. The Court nevertheless admonished Hartwell that he had stepped over the line by improperly arguing that the individual members of the Association were going to be responsible for paying the judgment when he knew that the Association was insured and he had moved to exclude any mention of that insurance. Hartwell explained that he made the reference only with regard to punitive damages, an area not covered by the insurance policy. Blonder then asked for a mistrial. This Court denied the motion for mistrial and Blonder's request to mention the insurance coverage. Instead, before Plaintiff's counsel gave his rebuttal, the Court instructed the jury that:

Mr. Hartwell inaccurately argued to you that the individual unit owners of the Shoreline Towers Condominium Association could be responsible for any monetary judgment in this case. This is an improper consideration for you when determining the damages that you may or may not award in this case. During your deliberations, the question of the source of any funds should not enter into your decision. You should follow my instructions regarding damages and Mr. Hartwell's incorrect statement should not be considered by you in reaching your decision.

Plaintiff argues that the Court's instruction was inadequate and that fairness dictates that she be granted a new trial. A movant must leap a high hurdle to obtain a new trial based upon comments made during closing arguments. See Doe By and Through G.S. v. Johnson, 52 F.3d 1448, 1465 (7th Cir. 1995) ("The plaintiff has a heavy burden when she seeks a new trial based on improper remarks during a closing argument"); Valbert v. Pass, 866 F.2d 237, 241 (7th Cir. 1989) ("This court has repeatedly explained that 'improper comments during closing argument rarely rise to the level of reversible error.'") (citation omitted). This hurdle becomes almost insurmountable when, as here, the statements were relatively brief, the court instructed the jurors that closing arguments were not evidence and the court gave a curative instruction promptly after the improper remarks. See Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir. 1986); Lenard v. Argento, 699 F.2d 874, 897 (7th Cir. 1983) (improper statements of counsel, made "in the context of all the evidence and the clear cautionary instructions of the trial court regarding the arguments of counsel, . . . do not rise to the level of reversible error"). In this regard, a jury is presumed to follow the Court's instructions "absent an overwhelming probability that the jury will be unable to disregard inadmissible evidence and a strong likelihood of a devastating effect from the evidence." Turner v. Miller, 301 F.3d 599, 604 (7th Cir. 2002), citing Raybestos Prods. v. Younger, 54 F.3d 1234, 1239 (7th Cir. 1995).

In Joseph v. Brierton, defendants successfully moved to exclude evidence that they, the warden and correctional officers at Stateville prison, were indemnified by the State for any judgments entered against them. See Joseph v. Brierton, 739 F.2d 1244, 1246 (7th Cir. 1984). During closing argument, defense counsel made repeated comments arguing that it would be unfair to make his clients pay a large judgment which they could not afford. See id. at 1246-47. In response to an objection from plaintiff's counsel, the judge instructed the jury that they should not concern themselves with the defendants' ability to pay in determining liability or damages. See id. at 1247. Given the highly prejudicial nature of the comments and the defendants' deception in moving to exclude evidence of indemnification, the Seventh Circuit found that "stronger medicine" was needed than the curative instruction. See id. Under such circumstances, the Court held, the trial judge was required to either grant a mistrial or let the jury know that the defendants were indemnified. See id. at 1248.

Hartwell's remarks were relatively short, two sentences in his "ten-chapter closing," and not as flagrant as the statements in Joseph. See Valbert, 866 F.2d at 241 (stating that brief, unrepeated comments as part of a lengthy argument do not require a mistrial). The remarks did not address as directly the issue of who would be responsible for a judgment and could have been intended and interpreted in other ways, such as Hartwell putting a human face on the Association. See Adams Labs, Inc. v. Jacobs Engineering Co., Inc., 761 F.2d 1218, 1226-27 (7th Cir. 1985) ("[T]o constitute reversible error, references to insurance coverage must be due to some misconduct or improper remarks or questions of counsel, ofttimes repeated, and calculated to influence or prejudice the jury.") (quotations omitted). Also, Hartwell's statements inferring that a judgment would affect all Association members were accurate to the extent the Association's insurance did not cover punitive damages. Most important though, this Court's curative instruction was prompt and particularly strong. The Court not only instructed the jury that the source of funds was not a proper consideration in determining liability and that they should follow the Court's instructions on damages, but the Court also affirmatively instructed the jury that Hartwell's statements were inaccurate and incorrect. Based on this instruction and the nature of Hartwell's comments, there was not an overwhelming probability that the jury was unable to disregard the inadmissible evidence or a strong likelihood of a devastating effect from the evidence. See Wilson v. Groaning, 25 F.3d 581, 583 (7th Cir. 1994) (prejudice from irrelevant and inflammatory testimony that plaintiff inmate through fecal matter on one of the defendant guards negated by prompt curative instruction from the court). Thus, combined ...


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